Superior Court of California¿ 

County of Los Angeles¿ 

Department 78¿ 

¿ 

 

I. BACKGROUND 

Plaintiff Daniel Chu (“Plaintiff”) filed this action against defendants GRCA2 Development, LLC (“GRCA2”), Gerry Wiener (“Wiener”), and CAA General Contractor, Inc. (“CAA”), and Cesar Andrino (Doe 1) for breach of contract action arising from renovation defects. Plaintiff alleges that on October 15, 2015, he entered into a Residential Purchase Agreement (“RPA”) with GRCA2 to purchase real property and improvements located at 2260 Maravilla Drive, Los Angeles, California. (Compl. ¶ 9.) In sum, Plaintiff discovered material defects in the renovations in 2016, and the parties settled the dispute pursuant to a Settlement Agreement in which GRCA2 represented to Plaintiff that GRCA2 had repaired or addressed all matters and defects set forth in the Addenda. (Id. at ¶¶ 18-20.) In August 2021, Plaintiff attempted to settle the property to a third party when Plaintiff discovered that no certificate of occupancy was ever obtained, and discovered evidence that GRCA2 and CAA intentionally concealed the defective renovations. (Id. at ¶¶ 21-23.) 

CAA now moves for summary judgment on the grounds that Plaintiff’s claim is barred by a full release of all claims contained in the Settlement Agreement signed in 2016. Plaintiff opposes the motion, and CAA filed a reply. 

 

II. REQUEST FOR JUDICIAL NOTICE & EVIDENTIARY OBJECTIONS 

Plaintiff requests the Court to take judicial notice of the CAA General Contractor Inc.’s Articles of Incorporation from the California Secretary of State’s website. The unopposed request is granted. (Cal. Evid. Code § 452(h).) 

 Plaintiff objects to the declaration of CAA’s counsel Mark R. Stapke (“Stapke”) on the grounds of lack of foundation and lack of personal knowledge. Objections 1-2 are sustained, objection 3 is overruled as to the statement that Stapke took the deposition of Plaintiff but sustained as to “Mr. Chu testified to the following”, and objections 4-7 are sustained. 

 

III. LEGAL STANDARD 

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).) 

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if the party does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.) 

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).) 

 

IV. DISCUSSION¿ 

CAA argues that it is a licensed general contractor hired by Wiener, who was acting on behalf of GRCA2, to add a pool and do minor interior remodeling of the subject property. It is undisputed that Plaintiff and GRCA2 entered into a settlement agreement, of which CAA was not present throughout its course. Nonetheless, CAA argues that the release contemplated CAA, because it broadly included Wiener’s “present and former agents, subcontractors, and vendors”. In support thereof, CAA proffers a shortform handwritten agreement between Plaintiff and GRCA2 dated November 22, 2016 (Stapke Decl. ¶ 6; Exh. A), and a longform Settlement Agreement and Mutual Release entered on December 20, 2016 by and between Plaintiff and GRCA2 (Stapke Decl. ¶ 7; Exh. B). 

The Court finds that CAA has not met its prima facie burden that Plaintiff had waived all claims arising from the subject property against it. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 780 n. 58 (citations omitted) [“[T]he defendant bears the burden of raising the defense and establishing the validity of a release as applied to the case at hand.”].) Aside from sustaining Plaintiff’s objections to Stapke’s declaration, CAA was notably not a named party to any of the releases, nor does CAA properly support its argument that the agreement between Plaintiff and GRCA2, without a doubt, contemplated CAA as a third-party beneficiary. CAA’s reliance on Salehi v. Surfside III Condominium Owners’ Assn. (2011) 200 Cal.App.4th 1146 and Winet v. Price (1992) 4 Cal.App.4th 1159 are not applicable to the issue at hand. As noted by Plaintiff, the parties in Salehi and Winet involved the same signatories to the release. However, the issue here is whether CAA, as a non-signatory to the releases and a non-participant to the negotiations leading to the releases, was intended to be a third-party beneficiary. 

Even if CAA did meet its prima facie burden, Plaintiff’s opposition raises multiple well-founded arguments precluding summary judgment in CAA’s favor. 

First, CAA failed to plead waiver as an affirmative defense in its Answer to Plaintiff’s complaint. Further, Plaintiff asserts that CAA also did not reference any defense of waiver or release in its written responses to Plaintiff’s written discovery. It appears that this defense is being raised for the first time on a motion for summary judgment. As cited by Plaintiff, “A party who fails to plead affirmative defenses waives them.” (California Acad. of Scis. v. Cnty. of Fresno (1987) 92 Cal. App. 3d 1436, 1442.) 

Second, notwithstanding the procedural issue, Plaintiff has demonstrated triable issues of material fact. The Court agrees that CAA was not specifically named as a third-party in the release, and that there is a factual dispute as to whether CAA was implicitly covered by the terms of the releases. CAA describes itself as a general contractor. The release includes GRCA2’s and Plaintiff’s “subcontractors, vendors, assigns, agents, employees, directors, officers, attorneys, predecessors, successors, parent companies, subsidiaries, affiliates, partners, shareholders, members, and assigns,” but there is no language including the category of general contractor. Plaintiff argues a triable issue of material fact exists as to the intent of the release, which did not specify general contractor when it was able to expressly name subcontractors. CAA’s motion also does not address Plaintiff’s allegations of fraud in inducement to rescind the settlement agreement, which would naturally foreclose any potential applicability to CAA. 

 

V. CONCLUSION 

Based on the foregoing, CAA’s motion for summary judgment is DENIED. 

 

Moving Party is ordered to give notice. 

 

DATED: July 12, 2024 

__________________________ 

Hon. Michelle C. Kim 

Judge of the Superior Court 

 

PLEASE TAKE NOTICE: 

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

• If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting. 

• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. 

• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.